New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1887-12-25
DECISION IN THE ANDERSON WILL CASE
MRS. AppLEroN,s DEMURRER ovERRULED BY

MRS APpLETON's DEMURRER OYERRULED BY
JUDGE BROWN. WITH COSTS.
NEwBURa Dec 24.-The decision OF Judge Brswn upon
Mrs Laura v Applesns demurrer in the John Anderson
will case was handed To-day 1t will be remembered
that the lawyers agreed before the Court that the de-
murrer Of Mrs Appleton (who is sister Of John T..
Andersen a son has brought suit TO determine Tue
validity OF the devise OF real estate to him Dy his lane
was erpssed the complaint on the grsund a' ~
did not state sufficient to constitute cause OF
action and also the ground that the law OF IL 10,
which authorized such an action of devise under WILL
was nlpedly repealed by the code OF procedure wch
was enacted by the Legislature OF Nsw-fsiK stats III
1880 The points recognized TO DC very lhl"I' h'
ones by both wls inherit large estates ana ny INC
lawyers brought ia to help manage thsm Judge
Brown ovsrrulss tho demurrer with Costs Inc spinoh
says:
I'm the case of Drake Drake. Al Hun. 1856 the
plaintiff was in psssessisa OF tns ana; anu mt Of
the te-tamenary disposition OF lands sesciipeu III t
fenants demurrer to the complaint and the special
Term sustained he demurrer on tRo auIhoriy NC" 80
session claiming mere legal the real property
OF the esaIor could oo mantah al action LOT 'ne oo"
Lam unable to disnsush Drake vs.. Drake from the
rase there the devises possession IS Is
& hare and b. sought as the paintin does. TO
have determined the validity OF tho ueNi'o Vi Wv "
lie precise point, however, which the Defendant
makes here does not appear TO have been dseusssu
the opinion OF the court In the cases cel Inc pe.
that the right maintain AZ action under nc cor e
| ia n which tpe party sue,
IL his possession under desd instead 81 VIII ,.
The Legislature intended by the several laws upon .s
subioct ~ create OF action ana 10 CONFER
upen The court power that dS not exist froi 70 lnc
OF statutes and 10 ADEPT inc colstiuctisu
adysrn;ed by the defendant would practcAhy nanny
the law ns to partics possession and ~ TO thoc eu 81
n.sses.ien The law was few cases weud
arise WHARF complete relief ssuld not 10 oot"i"eu " "
action of electmsnt or partltloh
ri.ht OF deNlsse In posscssiohe 81 Hnu uuol
will 10 ain action under tms statute Is w
strict cd 10 such would authorize mo pinss
nm M on 10 determne validity OF decd II Pessos-
md lead
Without EN- srng discussion OF me pe"cs VI
eour entertain actlens Institutes
protect LEGAL titles TO land Is suuclehl 50 ~.
Since fypet issues abolished aud the real parry J"
inter, required bring the suit and ACTIONS OF eJe
me nj wero re guated by statute unless tus case "oI
cnre within tie statute for desrnnns CLAIMS 10 rs"i
nrsnery there IL no action watch grantee In possession
OF land can bring 10 determine the NaIdiy 81 DIS
There nothing for him 10 do but to Wait an a'uS
the adverse Claimant. aud then INSERT MS uess as ~
feuce To the hostile claim 10 limit ths oPsrseh NV
law to such IL TO destroy H. Inc sth'u'o
call such construction L. IL pchehe'i ~n' 'o
dial a nd should he libcraliy construed
Many cases Will arise as those lu't cItee "neh NV
idty devise IN unqucsiloned ana the s"',
effect 10 say tnat sucn nc
tious can bs maintained Ike cases as I" uo'v
where the plaintiff might II IN possession uhdcr aso
msipias an ac,sn determine ths validity 81 INC uc""
v,ud be wholly without meaning. lot aeuoss I" w
ternnc tae validity OF he devise are upon el
construction. ana there Is us Mpo to
srictisn upon taan tae other ,,, ,.
NV opinion is that the action Is properly prough' "n
the code think aiss that II suihclcnty -fpe"ls io
Inc whole complaint that plaintiff has not parted win
a the la nd him. the demurrer must theIe
fore overruled with costs, win iedys 10 ts
TO answer III twenty days on payment OF costs